I, as well as many others, have long argued that prohibiting same-sex marriage is a blatant act of sex discrimination that has not been remotely justified. One common response is that it cannot possibly be sex discrimination since both women and men are equally prohibited from marrying someone of the same sex. We then point out that such reasoning was rejected in cases striking down interracial marriage laws. The responders generally then illustrate several ways that situation is different. Two of the reasons most often mentioned are (1) whereas the prohibitions on interracial marriage were based on notion of white supremacy, the prohibition on same-sex marriage is not based on any similar notion of male dominance, and (2) whereas racial differences are superficial, sex differences are real and fundamental,. I will try to address a few other suggested differences at the end, but for now I want to focus on these two using this week's Supreme Court decision in Johnson v. California as a springboard for my analysis.
Johnson was a case which challenged the California Department of Correction's policy of racially segregating prisoners for up to 60 days each time they entered a new correctional facility. The state argued that it's policy was "neutral" because all prisoners were "equally" segregated. The court ruled that nevertheless just by using a racial classification the policy should be "immediately suspect". The court emphasized that all racial classifications must be analyzed under strict scrutiny. As for the "equal" discrimination argument, Justice O'Connor, delivering the majority opinion, wrote:
The CDC claims that its policy should be exempt from our categorical rule because it is "neutral"--that is, it "neither benefits nor burdens one group or individual more than any other group or individual." In other words, strict scrutiny should not apply because all prisoners are "equally" segregated. The CDC's argument ignores our repeated command that "racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally." Shaw v. Reno (1993)
The cited case of Shaw concerned an instance of racial gerrymandering. The court also made reference to another case, Powers v Ohio (1991), which demonstrated the idea that it was the mere classification that was the problem even if applied equally. In that case jurors were excluded on the basis of race. Even though the defendant was white and the excluded jurors were black, and even though jurors may have been excluded for being white to an equal degree, the policy was still suspect (and declared unconstitutional).
We note that policies in Johnson, Shaw, and Powers all discriminated "equally" and in none of the cases could it be said that the state was motivated by any notions of white supremacy. From the cases we should learn at the least that the mere act of classification can be troublesome regardless of whether a policy was motivated by ideas of one group being better than the other. Still we ought to look at why the court has a policy of subjecting such policies to strict scrutiny in order to examine how situations of sex discrimination may be different. There is almost certainly some difference, after all, as although we might expect sex based classifications in voting and peremptory juror challenges to be unlawful, it would be surprising if a court were to strike down sex segregated prison cells.
J. O'Connor explains one such rationale in Johnson:
The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ... what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. Croson (1989) (plurality opinion). We therefore apply strict scrutiny to all racial classifications to " 'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.
That is racial classifications, for some reason which we will explore, are especially prone to being motivated by illegitimate views including not only notions of racial inferiority but also by "racial politics". What does the court mean by "racial politics"? I can't be sure exactly, but based on the context of the above cases as well as those dealing with racial preferences in contracts and admissions, I take it to mean the view that racial identity is key to people's behavior. Whatever it means we note that in instances of racial classification (unlike most other types of classification) the burden switches to the state to show that the classification is justified.
So why might racial classifications be especially prone to being motivated by illegitimate views, and do these same reasons apply to gender classifications? Well, one reason may be that we have a long history of policies that used racial classifications that were based on these illegitimate motives. This history has left any use of racial classifications automatically suspect. Unfortunately we also have a long history of policies using sex classifications based on illegitimate motives. As Justice Brennan noted in a plurality opinion in the case of Frontiero v. Richardson (1973) (a case argued incidentally by Ruth Bader Ginsburg):
There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:
"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .
". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State (1873) (Bradley, J., concurring).
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. And although blacks were guaranteed the right to vote in 1870, women were denied even that right - which is itself "preservative of other basic civil and political rights" - until adoption of the Nineteenth Amendment half a century later.
It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.
Although Justice Brennan neglects to mention discrimination in the area of family law explicitly at the end, it is a theme that runs throughout the above passage. We can see it not only in the restrictions placed on married women in the past, but especially in Justice Bradley's quote about women filling the "noble and benign offices of wife and mother". Note that Justice Bradley's views were not based on notions of the inferiority of women, rather only that there was a certain "family organization, which is founded in the divine ordinance, as well as in the nature of things." To combat such pervasive discrimination, even though it may have been with the best intent, many states passed Equal Rights Amendments or similarly adopted into their common law the idea that in matters of gender classification, just as in matters of racial classification, it is no longer necessary for the claimant to establish that the motives are illegitimate, but rather the state bears the burden by showing the classification is necessary to achieve some compelling interest.
Although the burden rests with those using the gender classification to justify it, I should point out that many of its defenders do indeed resort to stereotypical notions about the proper roles of men and women. This is seen quite often with those that defend the policy by claiming children need a mother and a father. Putting aside for the moment the fact that allowing same-sex marriage does not seem in any way to cause less children to have mothers and fathers, the arguments about why a parent of each gender is necessary are generally based on stereotypical assumptions about gender roles. These notions can even be seen in the legal briefs of those defending the policy. In addition to the direct appeal to traditional marriage, we also have one brief (pdf) in Washington using the following quote from David Popenoe's Life Without Father:
Through their play, as well in their other child-rearing activities, fathers tend to stress competition, challenge, initiative, risk taking, and independence. Mothers in their care-taking roles, in contrast, stress emotional security and personal safety...While mothers provide an important flexibility and sympathy in their discipline, fathers provide ultimate predictability and consistency. Both dimensions are critical for an efficient, balanced, and human child-rearing regime.
This leads us to the second claim about why matters involving racial classifications are different than matters of gender classification. That is while racial differences are superficial, sex differences are real and fundamental. Perhaps it is the fact that race is rarely relevant that makes it immediately suspect and perhaps therefore we should not extrapolate from decisions concerning racial classifications to cases involving gender classifications. In a landmark decision concerning gender classification, US. v. Virginia (1996), Justice Ginsburg did note that:
The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. (internal cites omitted)
Such reasoning, though, should not be interpreted to mean that gender classifications do not need to be subject to heightened review. They were subject to heightened review in the above case, and in states with ERA's they get subject to the same strict scrutiny as racial classifications. This difference between race and sex will show up when the state attempts to justify the policy, it does not alleviate the need to justify. And the court must remain skeptical of these attempts. Justice Bradley's reason for denying women to the bar was, after all, based on differences between men and women. To allow any difference to justify any policy would destroy any notion of equal rights. Still, it is perhaps due to these differences that sex segregation in living arrangements can be justified in instances where racial segregation could not be.
So does the fact that "separate but equal" may sometimes be okay with sex segregation, but not with racial segregation mean prohibitions against same-sex marriage should not be subject to heightened scrutiny? No. Even if we accepted a policy of "separate but equal" in general for sex classifications--and it is not clear that we should, as gender based admissions policies have been held suspect--it is important to realize that when it comes to our choice of spouse there can be no "equal" substitute like there can for say a dorm room. As I have explained before, this was the reasoning used in Perez v. Sharp (1948), a case decided before Brown when separate but equal was generally allowed with regards to race in other facilities. To use the reasoning of Perez, if we say a man is burdened on account of his sex by having to drive a longer distance to attend a nursing school when the nearby school is women only, how much more burdensome is it for the man to have to leave his life partner and find an "equal" substitute on account of his sex. In fact, it is not simply more burdensome, it is impossible.
I want to conclude by addressing a few other suggested differences between the "equal" racial classifications and the instance of the "equal" gender classifications involved in marriage. One is that whereas the racial classifications generally concerned matters of segregation, the marriage requirement is one of integration. To this I note that the court would just as likely have found the CDC policy unconstitutional if it had required a cell to be shared by people of different races. In fact, the court has consistently subjected policies of racial quotas to strict scrutiny. The problem is in the use of the racial classifications in the first place. Another suggested difference is that interracial couples could procreate and same-sex couples cannot. This is properly an argument concerning the justification itself, and not about whether a strong justification is needed. I would just note that this fails to be even a weak justification as one cannot reasonably argue that the state would like to confine marriage to couples who can or will procreate. Finally there is the argument that marriage is by definition between a man and a woman and thus it is impossible for same-sex couples to be married. We have seen in Massachusetts, Canada, and other countries around the globe, though, that same-sex couples certainly can be married under civil law. This argument holds no more weight than those that would say women cannot be governors because a governor is, by definition, male.